URANIUM MINING AND THE NAVAJO NATION-LEGAL ......relationship between the federal and tribal governments has created a permanent disadvantage for Native Americans, preventing them

URANIUM MINING AND THE NAVAJONATION-LEGAL INJUSTICE

ALICE SEGAL*

I. INTRODUCTION

The question this Note attempts to answer is how to best resolvethe injustice experienced by the Navajo people resulting from a history ofexposure to uranium mining. The Navajo people have been left with un-reclaimed radioactive contamination from past uranium mines and areunsuccessfully attempting to prevent more mining from being started inareas that have not yet been cleaned up.' The difficulties faced by theNavajo at forcing compensation or preventing future mining leads to theconclusion that the current judicial system and federal agency practices areinsufficient to protect them. The Navajo Nation has shown the interest andorganization to control uranium mining and prevent it from causing furtherinjury to its people, despite the limitations forced upon it by Congresswhen federal agencies have failed to provide the necessary protection.2

History shows that the Navajo need more sovereign control over thecleanup and regulation of their land in order to address their currenturanium mining concerns. This is not a perfect solution because it ispossible that a future Congress will take back the authority granted by thecurrent one. However, it is the only effective solution when statutes,federal agencies, and courts have all failed to effectively solve the problemof radioactive contamination.

The history of uranium mining and the Navajo people is one of poor

* J.D., University of Southern California Gould School of Law (2012).See discussion infra Part IV.

2 See Bradford D. Cooley, The Navajo Uranium Ban: Tribal Sovereignty v. National EnergyDemands, 26 J. LAND RESOURCES & ENVTL. L. 393, 420-22 (2006); see discussion infra PartIII.

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treatment, illness, inadequate compensation, and inconsistent tribalgovernment authority. In the beginning of the uranium boom, uranium wasdiscovered in the Midwest, with the greatest amount coming from the fourcorners area of New Mexico, Colorado, Arizona, and Utah, much of whichis in the Navajo reservation in the Grants/Gallup area of northern NewMexico. 3 The Navajo people and other locals mined this uranium,4 andalthough the federal government was aware of the radioactive dangerpresent in the mines, it consciously avoided informing the miners of thehealth risks.5 The uranium miners were left with exposure-caused illnessesand the Navajo people were left with radioactive material on their land.6

Meanwhile, the federal government ineptly provided minimalcompensation and reclamation.' There is still waste from the miningindustry ("tailings"), people are still getting sick, and the Navajo Nation isthe only motivating source behind any compensation.

The Navajo government should be given authority to prevent miningand to regulate cleanup in Navajo land. First, this Note will discuss thehistory of the Navajo and how changes in U.S. policy have deprived theNation of sovereignty or any remote power over its own affairs. 9 Next, thisNote will examine the history of uranium mining and the injuries that pastmining (with its insufficient protective gear or health warnings) caused tominers as well as the Navajo people living near the mines and mills.'0 Thispart is followed by an analysis of the federal regulations that are meant tolicense current mining operations and monitor cleanup of existingradioactive material." This Note will then focus on litigation. 12 Uraniumminers and their families have attempted to sue the mining companies aswell as the government to get compensated for past injuries.' 3 The Navajopeople living in the area have also sued over the radioactive material that

3 Jon J. Indall, A Historical Review of the Relationship Between the Federal Governmentand the Domestic Uranium Industry, and Current Uranium Activities and Issues in New Mexico,No. 2 RMMLF-INST Paper No. 16 (2006).

4 Doug Brugge & Rob Goble, The History of Uranium Mining and the Navajo People, 92AM. J. PUB. HEALTH 1410, 1410-11 (Sept. 2002).

s Id. at 1413.6 Id. at 1411-13.

'Id. at 1413-18.

'Id. at 1417-18.

9 See discussion infra Part II.A.

10 See discussion infra Part I.B.

11 See discussion infra Part III.12 See discussion infra Part IV.

"3 See discussion infra Part IV.A.

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is still left and to prevent future mining.14 Finally, this Note discusses theconcerns regarding Navajo sovereignty and concludes that the Navajotribal government is in the best position to protect its people and thereforeshould have clear authority to do this.' 5 As a prelude to the conclusion,there are sections discussing the Navajo government's ban of uraniummining,16 the ineptitude of current federal agencies to protect the Navajo, 7

and Congress's precedent of granting greater power to the Navajo tocompensate for poor federal policies (such as the Indian Child WelfareAct'").' 9 Additionally, this Note discusses the Navajo Nation's actions toprotect its people through the laws it passed and the lawsuits it has filedwith the help of the U.S. Department of Justice ("DOJ").

II. BACKGROUD: THE HISTORY THAT CREATED THEPROBLEM

The history of Native American sovereignty is a story of continualadjustments to, and inconsistencies in, the authority granted by the UnitedStates to Native American governments. These inconsistencies havecontributed to periodic increases to individual Native American poverty.20

Also, throughout history, Congress and the courts have limited the Navajogovernment's ability to pass enforceable regulations to control non-NativeAmericans whose actions impact the Navajo nation. 2 1 The federalgovernment has attempted to create and preserve a trusting relationshipwith Native American tribes to protect them from state or privateinterests. 2 2 However, it has failed to protect them, resulting in injuries tothe Navajo by private parties.23 The courts have also used federal statutes

24to further limit Native American governments. Thus, the unequal

14 See discussion infra Part flV.C.

1 See discussion infra Part V.

6 See discussion infra Part V.

17 See discussion infra Parts III, VII.A.'825 U.S.C. § 1901 (1978).

19 See discussion infra Part VI.20 Cooley, supra note 2, at 404-05.21 Id. at 402. See also Montana v. United States, 450 U.S. 544, 559 (1981); UNC Res. Inc.

v. Benally, 518 F. Supp. 1046 (D. Ariz. 1981) (holding that the tribal courts or the tribalgovernment do not have authority to pass enforceable regulations to control non-NativeAmerican actions).

22 See Cooley, supra note 2, at 402-04.23 See discussion infra Part II.B.

24 See, e.g., Montana, 450 U.S. at 544; Benally, 518 F. Supp. at 1048-49, 1052.

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relationship between the federal and tribal governments has created apermanent disadvantage for Native Americans, preventing them fromhaving legitimate government authority to protect their people againsturanium mining.

The history of mining demonstrates the difficulties that the Navajohave faced in overcoming issues with past mining and the ineffectivenessof the different agencies that regulate mining. Federal national securityconcerns surrounding uranium mining prevent the Navajo from suing thefederal government for promoting mining without disclosing the danger.25

Also, the agencies have yet to clean up past mining contamination in theenvironment,26 and are doing a poor job controlling current miningpermits.2 7 Some of these agencies have interpreted the relevant statutesloosely in order to reduce cleanup costs for the responsible parties. 28 Sincecourts defer to these agencies, people living near the mines are without aneffective means of appeal.2 9 This history of convoluted governmentintervention, bureaucracy, and development drove the Navajo governmentto ban uranium mining altogether.

A. THE HISTORY OF NATIVE AMERICAN SOVEREIGNTY: WHEN THE

FEDERAL GOVERNMENT HAS ALL THE POWER

Early on, the U.S. government gave itself authority to determine thevery existence and boundaries of the native tribes.3 0 This was enabled byuneven bargaining power that would continue to be used to limit Navajoauthority to protect its people from radioactive exposure. 3 1 From thebeginning, the U.S. government has had all of the control in creatingtreaties and determining boundaries with the tribes.3 2 This completecontrol resulted in a national tendency for the U.S. courts and agencies to

25 See Brugge & Goble, supra note 4, at 1413.

26 U.S. ENVTL. PROT. AGENCY, UNITED NUCLEAR CORPORATION (MCKINLEY COUNTY)NEW MEXICO 1-3 (Jan. 2012).

27 Peshlakai v. Duncan, 476 F. Supp. 1247 (D.D.C. 1979); Petition for Writ of Certiorari at3, Morris v. Nuclear Regulatory Comn'n, 131 S. Ct. 602 (2010) (No. 10-368).

28 Peshlakai, 476 F. Supp. at 1247; Petition for Writ of Certiorari, supra note 27, at 3; U.S.ENVTL. PROT. AGENCY, supra note 26.

29 Peshlakai, 476 F. Supp. at 1262; Petition for Writ of Certiorari, supra note 27, at 3.30 FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW Vii-XV (U.S. Gov't Prtg. Off.

1942).3 1

id32 id

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disregard the sovereignty and rights of the independent tribes.33 Forexample, a treaty signed between the U.S. government and the Navajodeclared that the "United States 'shall, at its earliest convenience,designate, settle, and adjust their territorial boundaries, and pass andexecute in their territory such laws as may be deemed conducive to theprosperity and happiness of said Indians."' 34 Congress has continuedexercising complete control over the Navajo Nation, and by interpretingCongress's legislation, the courts have also limited Navajo independentauthority.

1. Congress and Legislation that Changed Native American Authority

Part of the history of the Navajo Nation is the development of theauthority to take legal action. This history is one of complete control bythe federal government, while tribal governments were at the whim offederal decisions.3 5 From the beginning, Congress, courts, and federalagencies have been able to adjust tribal government power to match thepolicies of the United States and ensure that the goals of tribalgovernments did not conflict with national policy. 3 6 Native Americans,such as the Navajo, have been granted different degrees of powerthroughout history. Congress has given and taken away authority andsovereign identity depending on Congress's policy to encourage ordiscourage the continuation of Native American tribes.37

Congress first dismantled Native American tribes in 1887 by passingthe General Allotment Act, which divided reservations.38 Land was givento individual Native Americans to control and do what they wanted withit.39 The purpose of this decision was to encourage assimilation betweenNative Americans and settlers, but instead it eliminated the identities ofsovereign tribes and pushed Native Americans into poverty. 40 This waspart of a recommendation suggested by the U.S. commissioners who hadthe responsibility of the "direction and management of all Indian

3 Id.34 Id. at 46. (quoting treaty between the United States and the Navajo Tribe, Sept. 9, 1849,

Art. IX, 9 Stat. 974).

36 Id; accord Cooley, supra note 2, at 402.3 Cooley, supra note 2, at 404.38 General Allotment Act of 1887 (Dawes Act), 25 U.S.C. §§ 331-34, 339, 341-42, 348-49,

354, 381.3 COHEN, supra note 30, at 7.40 See Cooley, supra note 2, at 400-04.

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affairs."4 1 Native American management has developed through theBureau of Indian Affairs, an agency given control over tribes in order toaffect changes in U.S. policies toward the tribes.4 2 However, this policyresulted in shrinking reservations and increased poverty.4 3 The negativeimpact on the tribes caused President Nixon to terminate the policy in1970." Nixon declared that the federal government betrayed the trust ofNative American tribes by causing them to crumble and suffer in

poverty.45 Thus, the government recreated the tribes and helped themutilize federal programs to improve their quality of life. 46

2. The Marshall Trilogy and Tribal Authority

The courts also reduced the authority and power of tribalgovernments. This is observed first with the Supreme Court, which inseveral early cases that have been called the Marshall Trilogy ("Trilogy"),defined the power of Native American tribes.47 The Court described thedefining characteristics of Native American tribes, which have becomelegal precedent today, and then proceeded to limit tribal governmentpower. 48

The Court opined that Native American tribes, while "foreign states,not owing allegiance to the United States, nor to any state of this union,nor to any prince, potentate or state, other than their own," which "havebeen uniformly treated as [states] from the settlement of our country" withan "unquestionable . . . right to the lands they occupy," are, nevertheless,"domestic dependent nations," occupying "a territory to which we assert atitle independent of their will."49

The Trilogy cases established that because Native American nationsare not independent governments on their own, they cannot bring lawsuitsin U.S. courts and therefore must depend on their trust relationship withthe U.S. federal government to protect their interests.5 0 Through this trust

"' Id at 10.42 Id43 id.

4 Cooley, supra note 2 at 404-05.45 Id at 404-05.46 Id at 405-06.47id

48id

49 Id at 400 (quoting Cherokee Nation v. Georgia, 30 U.S. 1, 3, 16, 17 (183 1)).50 Id

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relationship, the federal government holds land for the tribes and isresponsible for protecting them from state or corporate intrusion.5 ' TheTrilogy cases concluded that Native American nations are their ownsovereign entities, but that their power to act is hindered because theirauthority is still regulated by and under the will of Congress.52 The Trilogydid grant some power to the tribes however, by establishing that they arenot under the power of the states.s3 The Trilogy put the Navajo at themercy of the federal government: they cannot sue and their land is held intrust at the direction of the federal government, which prevents them fromtaking the actions they would need to counter unwanted uranium mining.

3. Montana v. United States: The Courts Limit Tribal Control overLand

In later cases, the courts have specifically limited the sovereign rightsof tribal governments to influence changes affecting tribal land. While thetribes have been given general power to control their land, the courts havechanged the definition of tribal land to limit their power over certain areasaround their land.54 For example, in Montana v. United States, the Courtheld that the Crow Tribe could only regulate or control the actions of non-Native Americans on land on which the tribe exercised "absolute andundisturbed use and occupation[.] 55 In Montana, despite the appearancethat the treaty granted the tribe absolute power, the Court interpreted thetreaty to determine that the tribe did not completely control the land and,therefore, that they could not be in command of all non-Native Americanactions on it.5 6 In this case and subsequent Navajo cases, courts haveupheld tribal jurisdiction over land while reducing tribal power by holdingthat Native Americans do not completely control their land and, therefore,cannot manage the actions of non-Native Americans on their land.

In Montana, the Court held that the U.S. government does notroutinely give away the riverbeds of navigable waters, which are reservedfor the states.57 Thus, when the U.S. government made a treaty to give an

51 Id.52 id

53Id.54 Cooley, supra note 2, at 407; accord Montana v. United States, 450 U.S. 544, 559 (1981).s Cooley, supra note 2, at 407 (quoting Treaty with the Crow Indians, U.S.-Crow Indian

Nation, art. 11, May 7, 1868, 15 Stat. 649); accord Montana, 450 U.S. at 559 (quoting Treatywith the Crow Indians, U.S.-Crow Indian Nation, art. II, May 7, 1868, 15 Stat. 649).

56 Cooley, supra note 2, at 407-08.s7 Montana, 450 U.S. at 551-52.

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entire property to the Crow Tribe in 1851, the Court could presume thatthe government did not intend to give away the riverbed. The Courtdecided that "[t]he Crow treaties in this case . . . fail to overcome the

established presumption that the beds of navigable waters remain in trustfor future States and pass to the new States when they assumesovereignty."59 Despite that this presumption was not clear when the treatywas made, the Crow were found not to have control of the riverbed and,therefore, could not regulate it. Thus, despite the appearance of the treatyto grant complete control, the Crow's fishing restrictions were not

applicable to the non-member fishermen in their water.60 The courts havecontinued to limit the sovereign power given to Native American nationsby interpreting congressional statutes to limit tribal authority.6' Montanaalso leads to the conclusion that the Navajo do not have jurisdiction toregulate mining operations that are not being conducted entirely on Navajoland.

4. The Courts Limit Tribal Control over Non-Native Americans

A number of subsequent cases established that tribes have the power"to define conditions of tribal membership, to regulate domestic relationsof members, to prescribe rules of inheritance, to levy taxes, to regulateproperty within the jurisdiction of the tribe, to control the conduct ofmembers by municipal legislation, and to administer justice." 62 The tribeshave been granted a presumed protection of their sovereign existence tocontrol their own land and people, but the courts limited this authority toinclude only the ability to control their own members.6 3 The ability of thetribes to reach beyond their controlled land or membership extends tribalauthority beyond the "inherent powers of a limited sovereignty," and thisseparate power is completely restricted by the acts of Congress andjudicial interpretations of these acts. 4 Courts have further altered thedefinition of Native American land, which reduces Navajo ability toregulate activities, such as nuclear power, by putting these activities

58 Id.

Id. at 552.

* Id. at 561-65.61 See, e.g., El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 484 (1999); UNC Res.,

Inc. v. Benally, 518 F. Supp. 1046, 1051-52 (D. Ariz. 1981).62 COHEN, supra note 30, at 122.61 See id.64 id.

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outside Navajo control despite's the activities' impacts on Navajo land. 65

The continued limitation of the sovereignty of Native Americans hascaused a reduction in the ability of tribal governments like the NavajoNation to control the actions of non-Native Americans around tribal land,even though the actions of non-Native Americans may negatively affectthe people living on a reservation.66 The laws have crippled the Navajogovernment, which cannot stop the actions of non-Native Americansthrough the tribal courts and cannot sue without the help of the DOJ,putting the community in a form of powerless limbo.6 7 Although theEnvironmental Protection Agency ("EPA") and DOJ are supportive of theNavajo's actions against mining, a federal agency representing a tribalgovernment that does not have the authority to represent itself could createproblems. 68 Throughout U.S. history, Native Americans have beensubjected to the absolute will of Congress through legislation and judicialinterpretation of legislation.69 These congressional and judicial actionshave made it difficult for the Navajo government and individual NativeAmericans to counter the uranium mining that has been so destructive forNavajo health and preservation of the Navajo culture.7 0

5. The History of Uranium Mining: Unsafe Conditions and Lack ofInformation

In the early twentieth century, during the early development of themining industry, the international community became increasingly awareof the danger presented by uranium and radioactive material. 7 1 Despite theincreased information, the Navajo miners were not informed of thedangers of uranium mining nor provided with safety equipment. 72 injustifying their silence, the federal government cited national securityconcerns and the need for research to discover the connection betweenworking in the mines and illnesses such as cancer before taking steps thatcould negatively impact mining operations. 73 In the 1930s, "there was no

65 Montana, 450 U.S. at 552; Neztsosie, 526 U.S. at 484.

6 See discussion supra Part II.A.3.67 See supra Part Il.A.4.68See supra Part II.A.2.

6 See supra Parts II.A.1-2.70 See supra Parts II.A.2-4.71 Brugge & Globe, supra note 4, at 1410.72 Id. at 1411.

7 Id. at 1416; Begay v. United States, 591 F. Supp. 991, 1011-12 (D. Ariz. 1984), affd,

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scientific doubt that uranium mining was associated with high rates oflung cancer." 74 During the 1950s the Public Health Service ("PHS")researched the extent of the relationship between mining and cancer.75

Additionally, the Federal Radiation Council ("FRC") was not started until1959, and did not encourage state or federal regulation until the 1960s,demonstrating a pattern of delay.77 The federal government did notregulate ventilation or the exposure of miners to radioactive dust in themines until 1967.78 This delay in implementing regulations and resistanceto informing the Navajo miners placed the Navajo in greater danger ofradiation exposure and resulted in an increase in cancer among miners andthe general Navajo population.

Before standards for radiation levels were set, the PHS researched therelationship between chemicals found in uranium mines and particularhealth issues.79 The time spent confirming this research resulted in theminers' unnecessary exposure to radioactive material because the researchconfirmed the connection between uranium mining and health dangerslong before protective action was taken.80 One of the major controversiessurrounding the PHS study-for which the federal government would laterbe sued-is that the miners being studied to determine the health effects ofexposure to uranium were not told that the government knew of healthrisks associated with uranium mining.8 ' The miners were only informed ifthey had lung cancer, because then their medical care would be transferredto their regular doctors for treatment.8 2 They were never informed of thedanger that their occupation was continually presenting to their health orthe fact that their cancer was likely caused by their jobs.83

After the PHS concluded its research on the miners in 1959, thegovernment continued to fail to inform the miners of the dangerspresented by their work; however, the federal government did ask the

768 F.2d 1059 (9th Cir. 1985).74 Brugge & Globe, supra note 4, at 1412.

15 Id. at 1413.

76 Begay, 591 F. Supp. at 1001-04.7 Brugge & Globe, supra note 4, at 1415.

Begay, 591 F. Supp at 1004; accord Brugge & Globe, supra note 4, at 1415.

7 Brugge & Globe, supra note 4, at 1413.

oId. at 1415.

8 Id. at 1413. See Begay, 591 F. Supp. at 996-99.82 Begay, 591 F. Supp. at 996.83 Brugge & Globe, supra note 4, at 1413; Nancy B. Collins & Andrea Hall, Nuclear Waste

in Indian Country: A Paradoxical Trade, 12 L. & INEQ. 267, 295 (1994).

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states to regulate the uranium mines.84 However, these requestedregulations were not sufficiently adopted by the states.8 5 This lack ofcompliance caused the FRC to threaten to have Congress "preempt stateregulatory authority over uranium mines" with new federal regulation.86

However, preemption was not pursued because the Joint Committee onAtomic Energy ("JCAE") decided that, "more studies were needed todetermine a safe low threshold of ionizing radiation."87 Also, since theAtomic Energy Commission ("AEC") "did not have regulatory authorityover mines located on private land and regulated by the states," withoutcongressional intervention, their direct regulatory power was limited tomilling operations.88 State regulations were still not up to proper standardsfor a safe working environment when the President approved the FRC'sproposed uniform federal radiation standard in 1967, finally taking federalaction after nearly forty years of permitting miners to be exposed toknown unsafe conditions., In a hearing held by the JCAE, thecommissioner of the AEC defended the previous forty years withoutfederal regulation by claiming that the AEC expected other agencies toact, though he admitted that in hindsight the AEC could have actedquicker and sooner.90 Thus, the miners and their families were notsufficiently protected from radiation and were not warned of the risks ofuranium mining for decades as a result of federal mismanagement.9 1

The federal government's defense for failing to inform miners wasthat it needed to protect national security.9 2 If mining and milling stoppedbecause employees realized that their jobs were dangerous, then theproduction and processing of uranium, considered vital during the ColdWar, might stop.93 The U.S. made the conscious decision to continue toendanger this minority for the good of the rest of the country. 94 As a resultthe miners did not take precautions to protect themselves and theirfamilies from radiation because they were ignorant of the dangers

Brugge & Globe, supra note 4, at 1414.

s See id.Begay, 591 F. Supp. at 1002.

Id. at 1002-03.1 Id. at 1003.9 1d. at 1004.

9Id. at 1005.

Brugge & Globe, supra note 4, at 1410.92 Begay, 591 F. Supp. at 10 11-12; Brugge & Globe, supra note 4, at 1416.9 See Begay, 591 F. Supp. at 1011-1012.

94 id

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associated with uranium mining.9 5 This lack of awareness is the mainreason that the miners were exposed to unnecessarily high levels ofradioactive material. The mining and milling processes are inherentlydangerous and neither protection nor information was given to the minersto reduce the impact of uranium mining.

The delay in passing regulations to protect and educate the uraniumminers caused unnecessary exposure to both the miners and theirfamilies. 96 One Navajo miner interviewed in the film, The Four Corners,A National Sacrifice Area?, said, "when I took the job, they didn't tell meit was dangerous. I used to come home from work covered with uraniumdust. It contaminated my children because we did not know it wasdangerous. I probably ate it at lunchtime when my hands were grey withdust."97 The miners would bring home their work clothes covered in theradioactive material, which their children would play near and their wiveswould wash, exposing the entire family to the dangerous material andmaking them very ill.9 8 The fact that the miners were not informed of thedanger meant that they likely did not take the care that they otherwisewould have around the dust, making the exposure greater for them andtheir families.

Beyond the exposure brought home from the mines, the miners werepermitted by the mining companies to take the rocks left over from themining process and use them to build houses. Because the Navajo peoplewere not warned of the danger, they lived (and continue to live) amongstthe leftover material, and even built their houses with the contaminants,further exposing them to radioactive material.99 The Navajo people morethan any other group working on the mines were kept largely unawarebecause they did not speak English, so they were disconnected frominternational discussions of the utility and danger of radioactivematerial.'00 Thus, as the miners were not aware of the risk, they continuedto work, breathe poisonous dust, and build their homes near the mines.

The Four Corners: A National Sacrifice Area? (Sacred Land Film Project 1983). Brugge

& Globe, supra note 4, at 1410.96 See Brugge & Globe, supra note 4, at 1411; Rebecca Tsosie, Climate Change,

Sustainability and Globalization: Charting the Future of Indigenous Environmental Self-Determination, 4 ENVTL. & ENERGY L. & POL'Y J. 188, 220 (2009).

9 The Four Corners, supra note 95.98 id.

9 See Removal Action Summary: Navajo Nation Radioactive Hogan Sites, Apache County,Arizona and San Juan County, Utah, http://frontiernet.net/-nnepansp/Aum3.htm (last visitedFeb. 20, 2012).

'a The Four Corners, supra note 95.

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Over the years, although the process of uranium mining has changed,it is not any less dangerous now than it was before. The different processesare dangerous in distinct ways and the newer methods are meant toremove uranium found in quantities that would normally be too small tobe efficiently removed using traditional mining methods. Mining in thepast was all deep underground mining with explosives, equipment, andshovels.' 0' Rocks and dirt would be hauled away from the mines inuncovered trucks and taken to a milling site where the uranium would beremoved using a chemical solution.'02 Both mining and milling would thencreate large piles of radioactive rock and debris.'0 3 Uranium milling wouldalso have tailing ponds of the waste containing radioactive material andthe strong chemicals used to remove the uranium.104 The main dangerswith this kind of mining are the piles of radioactive materials that arebrought up from the mines and left above ground, the dust that is scatteredby trucks and trains carrying the material, and the hazardous ponds thatsurround the milling sites and leak into the ground.

The newer method, In Situ Leach ("ISL") mining, is equallydangerous but involves pumping a high-pressured water and chemicalsolution into the ground and then using that solution to bring up uraniumin quantities that would have been inefficient with traditional mining.'osThe solution is then sent to be processed to extract the uranium. There aretwo main risks surrounding this mining process. First, once the chemicalsare injected into the soil, it is very difficult to remove them.'0 6 The processthat is used forces radioactive material and other hazardous chemicals intothe ground water and the aquifers in the area.10 7 The ISL miningperformed thus far has been done in areas in which the water quality was

101 TERRASPECTRA GEOMATICS, NORTHERN AUM REGION SCREENING ASSESSMENT

REPORT 1 (2006) (Report prepared by TerraSpectra Geomatics for the EPA with the help of theU.S. Army Corps of Engineers and the Navajo Nation), available athttp://yosemite.epa.gov/r9/sfund/r9sfdocw.nsfcf0bac722e32d408882574260073faed/0dd61b78cfe0b33a882573fd006c3e84/$FILE/Northern%2Region%20Screening%2Assessment%/o2OReport.pdf.

102id.

0 3Id. at 1-2.

104 Doug Brugge et al., The Sequoyah Corporation Fuels Release and the Church RockSpill: Unpublicized Nuclear Releases in American Indian Communities, 97 AM. J. PUB. HEALTH1595, 1597 (2007) (specifically describing the Puerco River spill which was an example of oneof these ponds).

105 Opening Brief for Petitioner at 13-14, Morris v. U.S. Nuclear Regulatory Comm'n, 598F.3d 677 (2010) (No. 07-9505).

'06 id.

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already poor and there were few people in the area that might use theaffected aquifers. 0 8 However, the arguments being presented byenvironmental groups and the Navajo are that the water quality is muchhigher and there are a large number of people that will be affected by thispollution. 0 9

The second serious risk with ISL mining is that although there arehigh standards of cleanup, these standards are often replaced with morerelaxed standards by the Nuclear Regulatory Commission ("NRC") whencompanies claim that sufficient cleanup is financially impossible." 0 Thus,there has- at best-been successful reclamation of only one ISL mine."'Although the companies have tried to clean the water, this is a difficultprocess. Thus, the lack of success at cleaning the environment, while notentirely the companies' fault, exemplifies that ISL mining should not bepermitted in areas where a large number of people depend on the nearbyunderground aquifers. Still, ISL mining should not be banned, as itsupports nuclear power, a necessary part of today's world. However,federal agencies should not permit this mining in an area when there isclear evidence it will cause health problems and will not be sufficientlyreclaimed. Continuing to allow ISL mining under these circumstances isevidence of the inadequacies of certain federal agencies, which will bediscussed in the next section.

III. REGULATING URANIUM TAILINGS AND RADIOACTIVEWASTE

To address current mining issues, it is necessary to examine thelegislation passed concerning uranium mining and the agencies chargedwith enforcement. This analysis is relevant for both regulation of currentmining and cleanup of past mining. Diverse regulations have been passedto control different aspects of uranium mining and the milling process anda number of different agencies are set to enforce these statutes. Theseagencies often maintain contradicting policies about the proper standardsfor regulation, which cause them to conflict with each other. Accordingly,the inconsistencies between the agencies reduce efficiency as they end upworking against each other in interpreting and enforcing the same mining

108 Id at 14.

'0Id at 6-ll.

" Brief for Petitioner at 18-19, Morris v. Nuclear Regulatory Comm'n, 131 S. Ct. 602(2010) (No. 10-368).

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statutes. The clash between the EPA, NRC, and state agencies has shownup a number of times in cases on mining and milling. For example, HydroResources, Inc. v. EPA was based on a dispute about whether the NewMexico Environmental Department ("NMED") or the EPA would make adecision about a proposal to use ISL mining.H2 The EPA refused to permitthe mining while the NMED approved the mining permit."' The samelocation was considered in Morris v. U.S. Nuclear RegulatoryCommission, and is the subject of a lawsuit by environmental groups andNavajo individuals against the NRC and Hydro Resources, in which theNRC represented the opposite position of the EPA.114

The most prominent and utilized laws are the Clean Water Act("CWA"), the Comprehensive Environmental Response, Compensation,and Liability Act ("CERCLA"), the Uranium Mill Tailings RadiationControl Act ("UMTRCA"), the National Environmental Policy Act("NEPA"), and the Resource Conservation and Recovery Act ("RCRA").These laws enable federal and state agencies as well as the courts tocontrol mining in or near Navajo territory. The Navajo people have alsocooperated with or litigated against these statutes depending on thepolitical position that the relevant agency (usually the EPA, NRC, orGeological Society) has taken according to its role in the regulatoryprocess.

There are numerous distinctions between these different pieces oflegislation that illustrate the impact of each law on uranium mining.CERCLA, UMTRCA, and RCRA focus on cleanup of past contamination.On the other hand, CWA and NEPA regulate current mining permits. Thedistinctions break down even further between the statutes. A particularrelevant distinction between CERCLA and UMTRCA is the type ofactivity that the legislation controls. As the names indicate, UMTRCA islimited specifically to the cleanup of the tailings that are created by themilling process, not the mining process. CERCLA centers on anycontamination, so the standards set in CERCLA are used to regulate thecleanup of the mines. However, CERCLA is excluded from regulating theuranium mills, which are strictly the responsibility of UMTRCA and itshigher standards." 5

112 Hydro Res., Inc. v. EPA, 562 F.3d 1249 (10th Cir. 2009), cert. denied, 2010 U.S. LEXIS8826 (2010).

"' Id.114 Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677 (10th Cir. 2010); accord

Morris v. Nuclear Regulatory Comm'n, 131 S. Ct. 602 (2010).

1" U.S. ENVTL. PROT. AGENCY, OFFICE OF SOLID WASTE & EMERGENCY RESPONSE,

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0 REVIEW OFLA WAND SOCIAL JUSTICE [Vol.21:3

A. CWA

Although the CWA claims to regulate radioactive material andpollutants,116 courts hold that the CWA does not regulate uraniumwaste.1 17 Although uranium tailings are hazardous waste, they are notregulated under the CWA or the Clean Air Act.' 18 In Train v. ColoradoPublic Interest Research Group, the Supreme Court held that the CWA'sregulation of pollutants does not include source, byproduct, and specialnuclear materials." 9 Theoretically, it is possible to use the CWA to givethe EPA control over the other chemicals spilled into the environmentduring mining, but it has never been utilized by the EPA. Thus, theinfluence of the CWA on the uranium mining operation and cleanup ispurely hypothetical and has not been utilized by the EPA to regulateuranium mining or milling.

B. CERCLA

CERCLA was passed to ensure cleanup of contaminated sites aroundthe country and is relevant to uranium mining and milling because it hasbeen applied to the reclamation of a number of sites on Navajo territory,such as the McKinley County site.120 The cleanup is performed either byrequiring the companies that caused the contamination to clean and purifythe land to a reasonable level or, if the companies cannot be found, havingthe EPA clean up the area and later attempting to get compensation fromthe companies by suing them. The main aspects of CERCLA are that theagencies that enforce it, mainly the EPA and the U.S. Army Corps ofEngineers, respond to the contamination claim by testing the area fordangers.12 1 Once the site has been examined, the agency lists the site andensures that dangerous substances are cleaned up.122 These agencies thenattempt to hold contaminators liable for the damage and theoretically try

OSWER No. 9200.4-18, ESTABLISHMENT OF CLEANUP LEVELS FOR CERCLA SITES WITHRADIOACTIVE CONTAMINATION (1997), available athttp://www.epa.gov/superfund/health/contaminants/radiation/pdfs/radguide.pdf.

11 Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 (1987).117 Train v. Colo. Pub. Interest Research Group, Inc., 426 U.S. 1, 1 (1976).118 4 William H. Rodgers, Jr., Rodgers' Environmental Law § 7:8 at 6-7 (Thomas/West

2011).

"' Train, 426 U.S. at 1.120 Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §

9604 (2005).121 id.122 Id. at § 9605.

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to make sure that the innocent are compensated for their injuries. 123 All ofthe parties potentially held responsible (owners at the time of thecontamination, current owners, operators, and the person that organizedfor the disposal of the hazardous substance) are jointly and severallyliable, making it easier to find someone liable for cleaning up the site andensuring that those parties somehow pay for the entire cleanup. 124

The uranium mining cases on Navajo land that have been placed onthe National Priorities List and that have begun to be cleaned up are invarious states of being reclaimed by the companies found to beresponsible. For the site in McKinley County, the EPA is in the process ofpermitting the mining companies responsible for cleaning the hazardoussite to be excused from achieving certain standards of clean-up for someof the chemicals remaining on the site.' 25 The Navajo live on this site (theUnited Nuclear Corporation ("UNC") site), which was put on theSuperfund Priorities list for cleanup in September 1983.126 In July 1983,the company was required to begin cleanup of the contaminated water andthe tailings that had been left in the open.12 7 The site is still not completelycleaned, and the company, as of January 2012, is asking the EPA to makeexceptions for certain chemicals that cannot be removed from thegroundwater to sufficiently meet the EPA standards.128 The EPA hasreported that the "UNC has evaluated the technical impracticability (TI) ofachieving cleanup standards for sulfate, total dissolved solids (TDS) andmanganese and recommended that EPA invoke a TI waiver for theseconstituents." 2 9 The EPA considered the small population living aroundthe contamination and the population's use of bottled water as its mainwater resource as reasons to permit the lower standards for contaminationcleanup.130 Thus, even for the sites that are being cleaned up and are nearcompletion, the EPA is allowing lower standards without acknowledging

123 Id. at § 9607-08.124 id125 See U.S. ENVTL. PROT. AGENCY, supra note 26.126 U.S. ENVTL. PROT. AGENCY, SECOND FIVE-YEAR REVIEW FOR THE UNITED NUCLEAR

CORPORATION GROUND WATER OPERABLE UNIT (Sept. 2003), available athttp://www.epa.gov/region6/6sf/newmexico/united-nuclear/nm-united-nuclear_2nd-5yr review.pdf.

12 NPL Site Narrative for United Nuclear Corp., National Priorities List, U.S. ENVTL.PROT. AGENCY, http://www.epa/gov/superfund/sites/npl/nar766.htm (last updated Dec. 2 1,2011).

128 See U.S. ENVTL. PROT. AGENCY, supra note 26.129 Id. at 2.1 See id. at 3; accord Collins & Hall, supra note 83, at 296.

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the illness this has already caused the Navajo and will continue to causethe Navajo without sufficient cleanup.

In addition, none of the Navajo who were affected by the uraniumspill were compensated until February 16, 2011, even thoughcompensation is technically a part of CERCLA's requirement.131 TheNavajo Nation finally received a meager $1.2 million settlement as a resultof the efforts of the Navajo Nation's Department of Justice and the U.S.DOJ in filing a claim against Tronox for its participation in past uraniummining.13 2 This new development demonstrates the need for aggressiveaction from the Navajo government in order to help its people recoverfrom uranium contamination. Even with aggressive action, compensationwas long delayed. The Navajo Nation's Department of Justice had to takethe helm of compensation recovery for those who were already ill becausethe EPA instead chose to focus its attention on the EnvironmentalResponse and Liability sections of CERCLA.133

C. UMTRCA

UMTRCA is similar to CERLA because it regulates cleanup, butunique since it also delegates agency authority for new millingregulations. UMTRCA was passed in 1978 to specifically respond to thecontamination of uranium mills.13 4 The first part of UMTRCA requires thecleanup of past uranium mills, while the second part concerns regulationby the NRC and EPA.135 The EPA sets the standard for UMTRCA that ishopefully consistent with the standards set by the RCRA, and then theNRC enforces the EPA standards. The standards set by the EPA forUMTRCA are supposed to be in accordance with RCRA standards andsubsequently enforced by the NRC. 36 UMTRCA requires the NRC to

131 Press Release, Navajo Nation Envtl. Prot. Agency, Office of the Exec. Dir., NavajoNation Receives $1.2 Million from Tronox Bankruptcy Settlement for Uranium Clean UpEfforts (Feb. 24, 2011) [hereinafter $1.2 Million Settlement], available athttp://www.navajonationepa.org/poffiles/tronoxsettlementannounce0225 I.pdf.

132id

'3 Id: accord U.S. ENVTL. PROT. AGENCY, supra note 26.13 U.S. ENVTL. PROT. AGENCY, OSWER No. 9200.4-18, ESTABLISHMENT OF CLEANUP

LEVELS FOR CERCLA SITES WITH RADIOACTIVE CONTAMINATION AT ATTACHMENT B4

(1997), available at http://www.epa.gov/radiation/docs/cleanup/rad-arar.pdf.13s U.S. Envtl. Prot. Agency, Laws We Use: 1978-Uranium Mill Tailings Radiation

Control Act, Laws We Use (Summaries), available athttp://www.epa.gov/rpdweb00/laws/laws-sum.html#umtrca (last updated Feb. 10, 2010).

136 Id.

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regulate the current milling operations that are licensed by the NRC.137 A2003 study conducted by the Navajo Nation Environmental ProtectionAgency reported that there was ongoing radioactive contamination in thewater, soil, and homes in the area.13 8 This demonstrates that the cleanupstandards set for UMTRCA have not been met since contaminatedmaterials remain around Navajo homes and more mills are being permittedon top of un-reclaimed past waste.

There are numerous problems with UMTRCA and CERCLA thathave prevented this legislation from achieving its original goals. This ispartly because not all radioactive waste is classified the same. CERCLA isresponsible for regulating cleanup of uranium mines, but maintains lowcleanup standards.' 3 9 Also, it has many higher priority contamination sitesto consider compared to some of the mine tailings left on Navajo land.14 0

Thus, despite the existence of radioactive material, the limitations onUMTRCA and the lack of priority standing has resulted in CERCLA'sinability to completely regulate and enforce the waste cleanup.141

Another concern with UMTRCA is that it grants the NRC authorityto regulate uranium milling outside of the normal federal land jurisdictionthat NEPA is based on: so the NRC's jurisdiction is not limited by federalland.14 2 This illustrates the overarching authority of the NRC and federalgovernment over nuclear material, which the NRC inherited from itspredecessor, the AEC.14 3 Through UMTRCA, the NRC is required toconsider the environmental impact of all of its permits,14 4 and because it istaking federal action (since ISL mining permits are federal actions), itmust, according to NEPA, set out these considerations through anEnvironmental Impact Statement ("EIS"), which will be discussed in thenext section.14 5 However, these ISL mining permits are often granted too

37 Fact Sheet on Uranium Mill Tailings, U.S.NRC, http://www.nrc.gov/reading-rm/doc-

collections/fact-sheets/mill-tailings.html (last updated Feb. 4, 2011).i3 Tsosie, supra note 96, at 221.'3 See U.S. ENVTL. PROT. AGENCY, OSWER No. 9200.4-18, ESTABLISHMENT OF

CLEANUP LEVELS FOR CERCLA SITES WITH RADIOACTIVE CONTAMINATION AT ATTACHMENTBl-B7 (1997), available at http://www.epa.gov/radiation/docs/cleanup/rad arar.pdf.

140 Abandoned Uranium Mines (AUMs), Navajo Superfund Program White Paper (April2000), http://frontiernet.net/~nnepansp/Aum2.htm; accordBegay v. United States, 591 F. Supp.991, 1003 (D. Ariz. 1984).

14' El Paso Nat. Gas Co. v. United States, 605 F. Supp. 2d 224, 227 (D.D.C. 2009).142 Uranium Mill Tailings Radiation Control Act, 42 U.S.C. § 2021 (2006).143 Id. at § 202 1(b) (2006).

'"Id. at § 2021-22 (2006).145 National Environmental Policy Act, 42 U.S.C. § 4321 (2006).

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easily by the NRC, which reduces environmental impact standards that thecompanies must meet. In numerous cases, the EIS was deemedunnecessary or the company was allowed to use different standards tomeasure existing environmental conditions for the environment, which isnecessary to establish a baseline.14 6 Through the reduced requirements, theNRC follows the procedural requirements set forth by UMTRCA.However, substantively, the NRC makes decisions that are inconsistentwith Congress's intentions and overly harm the environment.14 7

D. NEPA

NEPA requires federal agencies to consider the environmental impactof their actions.1'48 According to NEPA, specific projects that requirefederal agency permits, approval, and assistance are considered federalactions, thus requiring EIS consideration.14 9 This normally excludes actionon state or private property, which is controlled by state equivalents ofNEPA.so NEPA requirements are mainly implemented to ensureprocedural compliance. The agency must put together an EIS (or have thecompany that is applying for federal approval put it together).'"' The EISmust include information about the project's environmental impact as wellas considerations of less harmful alternatives.15 2 As long as the agencyperforms this procedure and considers the alternatives, it should have notrouble making a decision that will be supported by the courts, whether itwants to continue the project or pursue an alternative.

To date, courts have deferred to agency discretion in such decisionsso long as the procedures were performed correctly.15 4 In one of the earlyNEPA cases, Calvert Cliffs' Coordinating Committee v. U.S. AEC, forexample, the court overturned an agency's procedure and decision byholding that an agency cannot just make an EIS and then ignore it. 55 The

146 Peshlakai v. Duncan, 476 F. Supp. 1247, 1250-51 (D.D.C 1979); Brief for Petitioner,supra note 111, at 3.

147 Opening Brief for Petitioner, supra note 105, at 27-28.14842 U.S.C. § 4321.149 40 C.F.R. § 1508.18 (2011).

50 Id.; accord Begay v. United States, 591 F. Supp. 991, 1003 (D. Ariz. 1984).

"s' 42 U.S.C. § 4332.152 id

1s3 Id.; accord Calvert Cliffs Coordinating Comm. v. U.S. Atomic Energy Comm'n, 449F.2d 1109 (D.C. Cir. 1971).

154 Calvert CliW's, 449 F.2d at 1118.

155 Id.

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court held that NEPA requires at least an "automatic consideration ofenvironmental factors" and held that the agency "must at least examine thestatement carefully . . . [a]nd it must independently consider the finalbalance among conflicting factors that is struck in the staff'srecommendation."l 5 6 Later cases have held that as long as the agencyapproving the EIS takes the necessary procedural steps to consider theEIS, the court cannot challenge the substantive decision made by theagency.'5 7 In Strycker's Bay Neighborhood Council, Inc. v. New York, thecourt upheld an agency decision by deeming that NEPA is meant "toinsure a fully informed and well-considered decision," 15 8 and that "theonly role for a court is to insure that the agency has considered theenvironmental consequences; it cannot 'interject itself within the area ofdiscretion of the executive as to the choice of the action to be taken." 59

Thus, NEPA requires that the agency consider the environmental impactbut does not have substantive requirements on what decisions need to bemade, which creates problems for community groups and the Navajogovernment when they are appealing NRC decisions over insufficientapplication of NEPA.160

NEPA demonstrates one of the many ways that courts have preventedpetitioners from halting mining and milling. This is particularlyproblematic because the responsible agency has systematically failed toprevent environmental problems and injuries to people living arounduranium operations. In Peshlakai v. Duncan, plaintiffs claimed that theproject being considered was a violation of NEPA.161 The U.S. GeologicalSurvey decided that a full EIS was unnecessary because its researchindicated that the initial exploration would not significantly impact theenvironment.162

NEPA does not always require an EIS, but the agency responsible forcreating the EIS is the one deciding if it is necessary. While the plaintiffscan appeal that decision, they are seldom successful. The court held inPeshlakai that "the responsibility for making a threshold determination asto whether an EIS is required by NEPA for a particular project lies with

156 id.

1 Strycker's Bay Neighborhood Council, Inc. v. New York, 444 U.S. 223, 227-28 (1980).

' Id at 227. (citing Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Counsel,Inc., 435 U.S. 519, 558 (1978)).

9 Id. at 227-28 (citing Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)).

1so Peshlakai v. Duncan, 476 F. Supp 1247 (D.C. Cir. 1979).161 id

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the federal agency involved. The burden is on plaintiffs to establish that adecision not to require an EIS constitutes a violation of NEPA."063 Thecourt further held that this "decision will be reversed by a court only if it isunreasonable or arbitrary and capricious."'6 Proper EIS and itsconsiderations were also being unsuccessfully argued by the New MexicoEnvironmental Law Center in its appeal of ISL mining pursued near thetowns of Church Rock and Crowpoint, which border the Navajo Nation.I1sApparently, the courts have been giving these agencies too muchdeference by allowing them the authority to make significant decisions aslong as they follow the correct environmental procedure. The NRC, theagency responsible for regulating mining, is not properly regulating theserequirements either. Thus, when the agency fails to properly regulate andthe courts defer to the agency, it is difficult for the public to appeal these

* * 166decisions that are causing contamination and injury.

E. FEDERAL VERSUS STATE AUTHORITY (BUT NEVER TRIBAL

AUTHORITY)

There are also distinctions based on the traditional responsibility offederal or state agencies that further subdivide the responsibility ofdifferent agencies to regulate particular activities. Like every other miningoperation on private or state land, underground uranium mining is solelythe responsibility of the state.167 For environmental impact regulation(NEPA), there is also a divide in whether the state or federal governmenthas jurisdiction over a particular activity. NEPA only gives federalagencies like the NRC and the EPA the ability to regulate on federalland.168 If the state agency creates a program that sufficiently regulateswater use, the EPA can grant the state primary authority to supervisepublic water systems on state land.169 In New Mexico, the EPA cededauthority to the NMED. The problems surrounding this grant of power

'61 Id. at 1251-52.

" Id at 1252.165 Id; accord Brief for Petitioner, supra note 111, at 2-4.

16 Opening Brief for Petitioner, supra note 105, at 27-28; Petition for Writ of Certiorari,supra note 27, at 4.

167 Begay v. United States, 591 F. Supp. 991, 1001 (D. Ariz. 1984).168 See National Environmental Policy Act, 42 U.S.C. § 4321 (2006).169 Id at §§ 4321-75 (1982). See also States with NEPA-like Environmental Planning

Requirements, NATIONAL ENVIRONMENTAL POLICY ACT,http://ceq.hss.doe.gov/stateinformation/states.htmi (last visited Jan. 22, 2012) (explaining that"[s]everal states have environmental planning requirements that are similar to NEPA.").

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2012] URANIUMMINING AND THE NAVAJO NATION

were litigated in Hydro Resources, Inc. v. U.S. EPA, in which the courtconcluded that "the state and county exercise jurisdiction over privatelands throughout the checkerboard area."' 7 0 These mines are out of theEPA's authority, in an area of Church Rock called the Checkerboard,which is very near Navajo land.'7' However, while ISL mining isregulated by the state for environmental impact (instead of regulated bythe EPA), the uranium milling process is still regulated by the NRCbecause it is considered a milling process of radioactive material.172

The land the mine will be on is checkerboard where the land switchesbetween Native American, private, state, and federal land.'73 The miningwill be near the Navajo reservation and its impact will cross borders andaffect the Navajo reservation (the authority of the Navajo government wasnever considered).174 The argument made by the EPA in this case is basedon the EPA's regulations under the Safe Drinking Water Act ("SDWA").The SDWA defines "Indian country" as "(1) reservations, (2) 'dependentIndian communities,' and (3) allotments."'7 It is land that is "set asideunder federal protection for the residence of tribal Indians, regardless oforigin." 76 Therefore, even though the land may not be part of the mainNavajo Nation territory, if it is part of the trust that the federal governmentis holding and protecting for the Navajo people, the EPA and other federalagencies should be the sole powers that regulate that area. However, if theland is actually just private property or part of the land that belongs to thestate, then the authority has been delegated to the NMED through thefederal limitation of NEPA. 7 7 The dispute thus became about whether theEPA or the NMED had the authority to examine and approve (ordisapprove as the EPA would do) the mining company's undergroundinjection control permit application.178 The standards that the EPA sets for

170 Hydro Res. Inc., v. U.S. Envtl. Prot. Agency, 608 F.3d 1131, 1137 (10th Cir. 2010).

172 Id.; Regulation of Radioactive Materials, U.S. NUCLEAR REGULATORY COMM'N,

http://www.nrc.gov/about-nrc/radiation/protects-you/reg-matls.html (last visited Mar. 28, 2012)[hereinafter Radioactive Materials].

1" Hydro Res., Inc. v. U.S. Envtl. Prot. Agency, 562 F.3d 1249, 1256-57 (10th Cir. 2009)overruled by Hydro Res. Inc., 608 F.3d 1131 (10th Cir. 2010).

174 Hydro Res., Inc. v. Envtl. Prot. Agency, 562 F.3d 1249 (10th Cir. 2009), rev'd, 608 F.3d1131.

" Hydro Res., Inc., 562 F.3d at 1253.176 Id. at 1272 n.l (quoting FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 34

(Rennard Strickland ed. 1982)).Hydro Res., Inc., 608 F.3d at 1134.Id. at 1174.

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these programs are meant to ensure that no mining takes place in areas thatendanger drinking water sources.179 The court held that the mine was onprivate land. However, although the land is not on the main Navajoterritory, the nature of the checkerboard means that it will impact Navajoland. If the land is private property or belongs to the state, then theauthority has been delegated to NMED by the EPA through the SDWAand the federal government is precluded from regulating despite thedamage that could be done to the land the EPA maintains authorityover.'80 However, although the EPA did not have the authority to regulatethe impact of the mining, the NRC's duty to monitor milling processeslike ISL mining means that it still has authority.'

F. NRC: THE MOST RESPONSIBLE AND IRRESPONSIBLE AGENCY

The NRC is a particular problem for Navajo and environmentalgroups that are trying to prevent uranium milling development, or forcethe complete reclamation of a contaminated site. The NRC is supposed tobe a regulatory agency, however it becomes difficult to actually regulatewhen it also helps companies receive permits to mine without properlymeeting the necessary safety requirements.' 8 2 According to the Code ofFederal Regulations, the NRC must consider information about "proposedspecifications relating to milling operations and the disposition of tailingsor wastes resulting from such milling activities."' 83 However the NRC'sregulations permit mining in areas where it will negatively affect a largepopulation of Navajo, without proper plans of reclamation.184

The NRC is not behaving as a regulatory agency, which is why anumber of environmental groups and Navajo people are suing the NRC. 8 1

The NRC permits new ISL mines to be started with reduced standards for

'" Id. at 1138.

Iso See, e.g., id. at 1132 (the petitioner's land did not fall within a "dependent Indiancommunity" and therefore the proposed mine was not subjected to EPA regulation).

181 Regulation ofRadioactive Materials, supra note 172.182 Petitioners' Revised Opening Brief, Morris v. U.S. Nuclear Regulatory Comm'n, 598

F.3d 677 (10th Cir. 2010) (No. 07-9505), 2007 WL 4732316, at *27 [hereinafter Petitioners'Revised Opening]; Petition for a Writ of Certiorari, supra note 27, at 11-12.

... 10 C.F.R. § 40, App. A.8 Opening Brief for Petitioner, supra note 105.

185 See, e.g., Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677 (10th Cir. 2010)(petitioning for review, by a non-profit environmental organization, community organization,and two local ranchers, of NRC's issuance of license for ISL uranium mining at multiple sitesnear the Navajo Reservation).

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environmental protection in areas where past mines still containcontaminants that exceed the level allowed by the NRC's own regulationsfor cleanup.' 86 This lack of regulation and lack of cleanup will combine tomagnify contamination and radioactive emissions. This careless disregardfor decreasing habitability demonstrates that the NRC is an ineffectivesource of regulation and does not adequately protect the interests of thepeople living near the mills and mines under their authority.

In Morris v. NRC, the NRC and Hydro Resources are being suedbecause the NRC is permitting Hydro Resources to begin preparation foran ISL mining operation near an aquifer and without the regular EIS.'87

This may result in people in the nearby area receiving contaminateddrinking water.'88 The courts defer to NRC regulatory authority despite thefact that Navajo and environmental groups fighting the NRC's decisionhave reasons that show that the permitted contamination is not beingcorrectly considered by the NRC.18 9

The first problem pointed out in the Morris appeals is that the NRCallows mining companies to avoid standard paperwork with a simplifiedversion of the EIS that does not reasonably consider environmentalimpact.190 Instead of requiring a regular EIS, which is the general practicefor permitting ISL mining, the NRC requires a General EnvironmentalImpact Statement ("GEIS").1'9 The problem with the GEIS is that it doesnot require the site-specific exploration of the impact of a particularmining operation on the area, instead applying a generic document to allmine sites in Nebraska, New Mexico, South Dakota, and Wyoming.192Also, the GEIS "would limit public participation in licensing proceedings,and would reduce the type of studies required at each site."' 93 The GEISenables a corporation to begin mining with reduced standards ofenvironmental protection.' 94 Also, with less opportunity for the public tohave input, there is less of a chance for people that have already suffered

1 Petitioners' Reply Brief at 3, Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677(10th Cir. 2010) (No. 07-9505), 2007 WL 4732317, at *3 [hereinafter Petitioners' Reply].

"' Morris, 598 F.3d at 682.188 Petitioners' Reply, supra note 186, at 13.

189 Petition for Writ of Certiorari, supra note 27, at 8.

19 Petitioners' Revised Opening, supra note 182, at *4.

191 Id.

192 Eric Jantz, Nuclear Regulatory Commission (NRC) ISL GEIS, N.M. ENVTL. LAW CTR.(July 2007), http://nmenvirolaw.org/index.php/site/cases/nuclear-regulatorycommission nrc_islgeis/.

19 Id.

194 id

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from past radioactive waste to prevent further contamination and exposureto radioactive material by appealing the EIS. With these concerns, theGEIS appears to be completely opposite to the needs of the public. It isforcing people to live under poorer safety standards and dangerousexposure without an opportunity to appeal agency decisions within theNRC or to the courts.195

The second problem discussed in Morris is both the NRC's and thecourt system's failure to understand the risks and consequences ofpermitting certain mining. 196 ISL mining in particular uses a large quantityof water and presents a risk of contamination to the ground water in anyarea that it has been used in.19 7 The NRC permitted the company to usetesting methods of water quality below the standards required by theEPA.198 It also allowed the company to postpone presenting a reclamationand restoration plan for water quality.199 However, the court held that "theNRC's interpretation of [the statute] was entitled to deference because itwas not 'plainly erroneous' or inconsistent with the NRC's statements ofintent in promulgating the regulations." 200 As the sole dissenting judge inthe court of appeals, Judge Lucero pointed out that the NRC's conclusion"violates a fundamental rule of construction . . . [and] the majority's

decision . . . will unnecessarily and unjustifiably compromise the health

and safety of the people who currently live within and immediatelydownwind of [the area of the proposed mine site]." 201 In this case, unlikeISL mining in the past, the water in part of the affected area is goodquality.2 02 The risk of affecting a pure water source that people rely on in adesert locale demonstrates how permitting ISL mining in this area isirresponsible of the NRC and the courts that uphold the permittedapplication, which instead should hold that the NRC decision is "plainlyerroneous". 2 03

Third, as the Navajo Nation explained in its brief for appeal of the

Regulation ofRadioactive Materials, supra note 172.See Petitioners' Revised Opening, supra note 182, at 3-5.

197 Petition for Writ of Certiorari, supra note 27, at 4.

"n Id at 18.199 Id. at 6.200 Id. at 8 (citing Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d 677, 688-89 (10th

Cir. 2010)).20' Id at 8-9. (citing Morris, 598 F.3d at 705-07 (Lucero, J., dissenting)).202 Id. at I1. Also, it will arguably affect a nearby underground aquifer that is used for

drinking water (although the mining company and the NRC claim that there is no chance thiswill happen). Id at 17.

203 Opening Brief for Petitioner, supra note 105, at 27-28.

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Morris case, the NRC's interpretation of the regulations violates thefederal/tribal relationship. 204 According to precedence, "an agency must'consider its strict fiduciary obligation when interpreting regulations thatdirectly affect its 'administration of Indian lands."' 20 5 This requires theagency to adopt an interpretation of a statute "that is most consonant withthe unique federal/tribal relationship" to preserve the health and wellbeingof the tribe.206 The NRC is evidentially disregarding Navajo life, insteadfollowing interpretations of statutes inconsistent with the wellbeing of theNavajo or the policies of the tribal government. The NRC is thus notprotecting the interests of the federal/tribal relationship, which federalagencies are responsible for. As the NRC disregards both the rights of thetribe and the safety of the individual Navajo in favor of helping miningcompanies reduce liability, it is clear how far the NRC's actions havestrayed from those of a proper regulatory agency.

G. PROBLEMS WITH THE STATUTES: DEFERENCE TO AGENCYDECISIONS

As embodied by the problems with the NRC, statutes give agenciestoo much authority essentially independent of judicial review. 2 07 Thejudiciary defers to the judgment of the agencies' interpretations of thestatutes so long as the agency's explanations are not completelyunreasonable. 20 8 The standard of review for these kinds of cases, explainedin Quivira Mining Co. v. U.S. Nuclear Regulatory Commission, is that acourt will only change an agency's decision if the agency's rule is held tobe "arbitrary, capricious, an abuse of discretion, or otherwise not inaccordance with law." 2 0 9 An agency decision will be overturned only if:

[T]he agency has relied on factors which Congress has not intended it toconsider, entirely failed to consider an important aspect of the problem,offered an explanation for its decision that runs counter to the evidencebefore the agency, or is so implausible that it could not be ascribed to a

204 Brief Amicus Curiae of the Navajo Nation in Support of Appellants' Petition forRehearing and Rehearing en Banc at 7, Morris v. U.S. Nuclear Regulatory Comm'n, 598 F.3d677 (10th Cir. 2010) (No. 07-9505), 2010 WL 2154294, at *7 [hereinafter Brief Amicus Curiae].

205 Id. at 7 (citing HRI, Inc. v. Envtl. Prot. Agency, 198 F.3d 1224, 1246 (10th Cir. 2000)).206 Brief Amicus Curiae, supra note 204, at 7-8.207 See discussion supra Part 111.6.208 Id209 Quivira Min. Co. v. U.S. Nuclear Regulatory Comm'n, 866 F.2d 1246, 1249 (10th Cir.

1989).

38 1


difference in view or the product of agency expertise. 2 10

Thus, unless any of the aforementioned standards are met, courts willdefer to Congress and the agency's interpretation of Congress's will. Herethe court limited its inquiry to "whether the NRC ensured that the costs ofits general approach to regulating uranium mill tailings, as embodied inthe unamended criteria, were reasonable in light of the benefits to begained from such regulation." 211 Because of the court's deference, theNavajo are unable to appeal NRC decisions. To counter thispowerlessness, the Navajo Nation needs power to control activitiesaffecting Navajo land, which includes activity near Navajo territory.

IV. FAILED ATTEMPTS AT COMPENSATION AND REPARATION

The inability to achieve compensation or reparation for the damageand illnesses caused by mining demonstrates a consistent pattern ofinjustice to the Navajo by mining companies and the U.S. government,which has refused to hold companies responsible for their actions. Whilethis injustice may not be a direct result of prejudice against the Navajo,greed and a lack of imposed responsibility have resulted in prejudice thatthe law has permitted thus far. The government's actions are resulting inprejudice against the Navajo. Although all miners were not told about thedangers, the Navajo were still prevented from later applying forcompensation due to conflicts between the American legal culture and theunique Navajo culture. This cultural divide inhibited the Navajo's abilityto prove their case for compensation. The Supreme Court has continued torule that the Navajo courts do not have authority to try the cases, whichfurther prevents the Navajo from effectively achieving compensation and

justice. 2 12 Thus, nearly all of the lawsuits being pursued by the Navajo toeither gain compensation or force regulation have been ineffective. Thusfar, the sole successful case has been the recent lawsuit against a miningcompany by the Navajo Nation as reimbursement for pastcontamination;213 federal courts have dismissed all other lawsuits.214

210 id211 Id. at 1254.

212 id

213 $1.2 Million Settlement, supra note 131.214 Brugge & Globe, supra note 4, at 1415-16.

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A. LAWSUITS BY MINERS-SUING THE GOVERNMENT AND COMPANIESFOR PAST MISDEEDS

There have been numerous lawsuits against both the U.S. governmentand the uranium mining companies for failing to provide adequate safety.First, however, in an attempt to gain reparations for their illnesses, theNavajo miners attempted to encourage the passage of federal legislationthat would extend compensation for black lung disease survivors toinclude uranium miners.215 When the legislation attempt was unsuccessful,the uranium miners, with the help of Stuart Udall, former Secretary of theInterior, sued both the U.S. government and the companies in 1979.216 Inboth cases, the plaintiffs lost.

The case against the companies was lost on the grounds that theminers would be compensated for their illnesses through workers'compensation, though most miners were not actually compensated."Court precedence throughout the state has held that workers'compensation "precludes lawsuits against the workers' employer foroccupational health and safety injuries or illness." 218 New Mexico, likemost states, held that in instances of injury within the scope ofemployment, compensation according to the Workers' Compensation Actprovides compensation that excludes other liability.219 In the cases againstthe mining companies, the miners' injuries were within the scope ofemployment and the companies were excluded from other liability.220

The U.S. government is immune to most lawsuits, including thoseconcerning the uranium exposure of the miners, because the governmenthad national security reasons for uranium purchase and promotion, ratherthan regulation. 221 The policy reason behind this is that governmentofficials need to be immune from lawsuits so they are not afraid to makedifficult decisions for the good of the country.222 However, thegovernment would later accept some responsibility when it passed laws tocompensate the uranium miners, such as the Radiation ExposureCompensation Act.

.1 Id at 1415.216 Id. at 1416; Begay v. United States, 591 F. Supp. 991 (D. Ariz. 1984).217 Brugge & Globe, supra note 4, at 1416.

18Id219 N.M. Stat. Ann. § 52-1-9 (2011).220 Brugge & Globe, supra note 4, at 1416.221 Begay, 591 F. Supp. at 1012-13.222 Id. at 1011.

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The miners sued the government for failing to inform them about thedangers from work in the mines and for failing to enforce standards on themining companies to reduce exposure. 2 23 The courts held that thegovernment is immune because the U.S. was acting for national securityreasons. 2 24 The court construed the uranium mining and milling as a validgovernment purpose. A result of the court's interpretation, the lack ofinformation given to the miners-including the public health study, wereall considered to be a part of the government's valid goal to protect thenation.225 The appeals court concluded from the evidence that "thedecision reached by Holaday [Chief of PHS's investigation team], not todisclose the possible dangers of uranium mining to the miners was basedon his judgment of what the best course of action was under the existingcircumstances."226 Since these actions were taken under the SurgeonGeneral's authority, they are protected by the discretionary power of theexecutive branch, preserving this decision by the PHS from judicialreview.227 The district court analyzed the steps taken by federal agencies tosuggest that action should have been taken sooner, but the court could notpermit the suit.228

B. RADIATION EXPOSURE COMPENSATION ACT-PROBLEMS WITH

GOVERNMENT COMPENSATION

The U.S. government, however, accepted some responsibility for itsparticipation in the contamination, which was created as part of theuranium boom, when it passed the Radiation Exposure Compensation Actin 1990 ("RECA"), for the purpose of ensuring that miners were

compensated for their injuries.229 Uranium miners are eligible forcompensation if they can show that they had worked for a mine in aparticular period, had health problems related to radon exposure in mines,and had sufficient Working Level Month Exposure to Radiation("WLM"). 2 30 This is set using the half-life of the daughters of radon, or theradioactive decay products of radon, that release energy and are calculated

223 Id. Brugge & Globe, supra note 4, at 1416.224 Brugge & Globe, supra note 4, at 1416.225 d226 Begay v. United States, 768 F.2d 1059, 1065 (9th Cir. 1985).227 d228 d229 Brugge & Globe, supra note 4, at 1416.230 28 C.F.R. 79.41 (n)-(o) (2004) (WLM is the accumulation of radioactive exposure by a

uranium miner that the miner will be exposed to every day).

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to be exposed to a certain level a day.2 3 1 However, miners could gather "anequivalent cumulative exposure over a greater or lesser amount of time" ifworking in a mine with poorer ventilation, which means the exposure todust is greater.23 2 Also, the miner applying for compensation is required tomeet a higher standard for WLM if the miner was considered a smoker.2 33

If a miner meets all of the requirements for RECA, then the miner wouldhave the opportunity to receive up to $100,000 in compensation from thegovernment.234

However, the Navajo uranium miners' applications for compensationare often rejected and their appeals through the court system have beenineffective.23 5 This is due in part to the high standard imposed on smokers,but also due to the ethnic and cultural reasons.

One of the factors that make it more difficult for Navajo miners towin compensation is the language barrier. Many Navajo miners did notspeak English.23 6 The Navajo's education on the reservation and their generalmistrust of the American government resulted in a unique language barrier anda lack of exposure to the American legal system.237 They had to useinterpreters to speak to both doctors and the investigators for the JusticeDepartment.238 The language barrier also made it more difficult tounderstand the process of applying for compensation and then appealingthe decisions of the Justice Department. 2 39 As Udall said, "[T]hey've putthese people in a bureaucratic legal maze designed to prevent compensation toNavajo miners. There's no pity for what happened to these people. Nounderstanding."240 This compensation problem continues to be difficult andfrustrating for the Navajo to overcome.

In addition, the Navajo miners often lack medical and other historicalrecords including records of their births or proof of medical treatmentwhich is a result of "a traditional system of undocumented tribal law and

231 Id232 28 C.F.R. 79.41(o) (2004).233 id.234 Howell v. Reno, 939 F. Supp. 802, 804-05 (D. Colo. 1996).235 Id. at 802; Keith Schneider, A Valley of Death for the Navajo Uranium Miners, N.Y.

TIMES, May 3, 1991, at Al.236 id237 JUDY PASTERNAK, YELLOW DIRT: AN AMERICAN STORY OF A POISONED LAND AND A

PEOPLE BETRAYED 21-22 (Free Press 2010).238 id239 d240 Schneider, supra note 235.

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custom." 24 1 They also face problems proving that they even worked in themines because often neither they nor the mining companies have anydocumentation.24 2

Third, this is exacerbated because Navajo miners often lack regulardocumentation that citizens of the U.S. usually have, such as marriagedocuments. Therefore, unlike their non-Native American counterparts whohave been compensated because they speak English and are familiar with"American traditions," the Navajo have been denied compensation for reasonsthat amount to ethnic and cultural prejudice.24 3 The Director of the Torts Branchof the Justice Department explained in 1993 that they were attempting to avoidfraud, but "the problem in most cases is that we have not received thedocuments we need to establish the illness."244 However, during the 1940s,which is the time period for when documentation is required, the Navajo oftendid not document their marriages.245 The Navajo who are appealing thedelayed or unfavorable compensation decisions by the Justice Department,with the help of Stuart Udall, argue that while the government began tocompensate miners for their health problems, it has not done this fairly.Amongst the 1,112 miners that filed for compensation in 1993, 328 claims wereapproved, while "just 54 of those who have received payments are Navajos." 24 6

Although the government may not have intended to discriminate against theNavajo, the organization and implementation of the compensation program,which ignore tribal culture, constitutes prejudice. The prejudice against thisminority group, combined with past injustices makes the lack of success withlawsuits particularly frustrating.

C. LAWSUITS CONCERNING REMAINING WASTE-GETTINGCONTAMINATION CLEANED UP

Besides the injuries that the uranium miners themselves have beensuffering, their families and other Navajo living near the mines or millshave also been experiencing illness as a result of the leftover radioactivematerial that has not been reclaimed. Radioactive waste and tailings havemade Navajo residents living near the mines or mills ill.24 7 Children have

241 Id242

d243 id244

d245 id246 id247 Uranium Miners Tell Panel Radiation Caused Ailment, N.Y. TIMES, Mar. 14, 1990, at

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played in riverbeds contaminated by radioactive waste 24 8 and wind hasblown radioactive dust into houses. 2 49 The remaining exposure made asignificant number of the Navajo in the area ill with a variety of diseases,ranging from cancer to developmental diseases that afflicted childrenwhose mothers drank contaminated water while pregnant.2 50

D. THE PUERCO RIVER SPILL AND FAILED RESOLUTION ATTEMPTS OFNAVAJO COURTS

Another example of the lack of attention and compensation given tothe Navajo people by the agencies instructed to protect them is found inone of the largest spills of radioactive material in the U.S., which occurredon Navajo land.2 5 1 The Puerco River spill occurred when a pond ofradioactive material from a uranium mill broke and spilled radioactiveliquid.252 This incident went relatively unnoticed and the cleanup wasinsufficient at best.25 3 To this day, people in the area are in danger becausethe radioactive liquid could leak into the underground aquifer andcontaminate drinking water.254 Also, people in the area are at risk everytime they eat meat because the radioactive material contaminatedlivestock.255 In fact, the Center for Disease Control recommended thatindividuals avoid eating animal parts that are likely to retain radioactiveparticles, such as the liver, which has made it difficult for the Navajo tosell their meat.256

Also, the Navajo affected by the spill were unable to sue theresponsible corporation in tribal court. Specifically, the Arizona DistrictCourt held that unless there is "express congressional authorization," 257

the tribal courts do not have jurisdiction over defendants who are not

A20; accordUNC Res., Inc. v. Benally, 518 F. Supp. 1046, 1048 (D. Ariz. 1981).248 Judy Pasternak, Oases in Navajo Desert Contained 'A Witch's Brew', L.A. TIMES (Nov.

20, 2006), http://www.latimes.com/news/la-na-navajo20nov2O,0,356449,full.story.249 Id. See also Tsosie, supra note 96, at 220 ("The wind blew dust from the tailing piles

into Navajo homes and water sources.").250 Pasternak, supra note 248.251 Brugge supra note 104, at 1598.252 Benally, 518 F. Supp. at 1048253 Id.; accord Brugge, supra note 104, at 1598-99.254 Tsosie, supra note 96, at 221.255 Id at 220.256 HARVEY WASSERMAN & NORMAN SOLOMON, KILLING OUR OwN 181 (Delacorte Press

1982).257 Benally, 518 F. Supp. at 1052.

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members of the tribe.258 In fact, tribal courts have only had criminaljurisdiction over Native Americans since 1999.259 In particular, an ArizonaDistrict Court held:

It is abundantly clear that in providing for a system of turnoveragreements between the United States and individual States, Congresshad no intention of granting any control over the nuclear power industryto Indian tribes. The court determines that the exercise of Tribal Courtjurisdiction in the pending case is not among the retained powers of theNavajo Tribe since such jurisdiction conflicts with the overriding federalinterests in preventing unwarranted intrusions of protected liberties andin regulating the production of nuclear energy.260

Also, a district court in New Mexico issued a similar holding. 261 Bothdistrict courts admit that the U.S. government does not want to relinquishany of its power to the Navajo government. For this reason, Navajo courtsstill lack jurisdiction over non-Native Americans.26 2 Additionally, tofurther justify its decision, the Arizona court concluded that non-NativeAmerican defendants should not have to appear in a tribal court becausethey would be unable to appeal the decision.263 In the Puerco River spillcases, the Arizona and New Mexico district courts refused to hold that theUNC was innocent.264 Nevertheless, they still did not allow the Navajo topursue their claims in tribal court simply because Congress had notgranted the courts express jurisdiction. 26 5 The Navajo have subsequentlybeen unable to recover adequate compensation for the disaster.26 6 For

267example, the UNC only had to pay a minimal amount of damages.

However, Navajo courts are starting to gain some power. Morerecently, the Supreme Court held that the tribal courts should be able todetermine their jurisdiction.268 In National Farmers Union Insurance Cos.v. Crow Tribe of Indians, the Court held that the Federal government

258 Id. at 1047-49.259 Criminal Jurisdiction over Indians Act of 1991, Pub. L. No. 102-137, 105 Stat. 646

(1991).26o Benally, 518 F. Supp. at 1052.261 See UNC Res., Inc. v. Benally, 514 F. Supp. 358, 361-64 (D.N.M 1981).262 Benally, 518 F. Supp. at 1052; accord UNCRes., Inc., 514 F. Supp. at 361-64.263 Benally, 518 F. Supp. at 1053.264 Id; UNC Res., Inc., 514 F. Supp. at 361-64.265 Benally, 518 F. Supp. at 1052-53; UNC Res., Inc., 514 F. Supp. at 361-64.266 El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473, 478-79, 488 (1999).267 Tsosie, supra note 96, at 220-21.268 Nezisosie, 526 U.S. at 483-84.

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2012] URANIUMMNING AND THE NAVAJO NATION

should not make a decision on jurisdiction, but should wait until the tribalcourt has had an opportunity to decide its own jurisdiction.2 69 In fact, laterthe Court stated that "Congress is committed to a policy of supportingtribal self-government . . . [which] favors a rule that will provide theforum whose jurisdiction is being challenged the first opportunity toevaluate the factual and legal bases for the challenge." 27 0 However thisdoes not mean that tribal courts get to determine their own jurisdiction; theSupreme Court may review any decision they make.

In El Paso Natural Gas Co. v. Neztsosie, however, the Court held thatthe tribal government did not have jurisdiction since the lawsuit was basedon the Price-Anderson Act.271 The act required that any "public liabilityaction arising out of or resulting from a nuclear incident" be addressed in afederal district court instead of a tribal court.2 72 In this case, the tribal courtdid not have jurisdiction because of the specification of the act. The Courtthus treated the tribal court as it would a state court, still resulting in thetribal court having no jurisdiction with which to make a decision. Thetribal courts have been removed from jurisdiction over nuclear incidents,further reducing tribal authority so that there is a question about theenforceability of any law that the Navajo Nation passes concerningnuclear power.

V. FIGHTING FOR AUTHORITY: THE NAVAJO BAN ONURANIUM MINING

The development of nuclear power as an environmentally friendlypower source has started a new uranium-mining boom. This time,however, the Navajos have specifically expressed their disapproval. In2005 then Navajo President Joe Shirley signed a law forbidding uraniummining on Navajo land,273 introducing the issue of the Navajo's authorityto control mining on their land. Nevertheless, the ban has been essentiallyignored and companies continue to mine around Navajo land.274 Since theban, federal and state agencies have debated whether entities should be

269 Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856-57 (1985).270 Id. at 856.271 Netzosie, 526 U.S. at 487-88.272 42 U.S.C. § 2210 (2006); Neztsosie, 526 U.S. at 483-84.273 Press Release, Office of the President and Office of the Vice President, Navajo Nation,

Navajo Pres Joe Shirley, Jr. Signs Din6 Natural Resources Protection Act of 2005 (Apr. 30,2005), http://www.sric.org/uranium/Navajo%20pres.%20signs%20uranium%20ban,%20for/20April%2030.pdf.

274 Morris v. Hydro Res., Inc. 598 F.3d 677, 681-84 (10th Cir. 2010).

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allowed to mine in areas near Navajo land, because doing so affectsNavajo underground aquifers. Whether the Navajo Nation's law canactually control the land is not addressed in these federal cases. Instead, todetermine whether a mine or mill may be erected, courts only consider theenvironmental impact of the operation on the surrounding land and theproper procedures for regulating such companies; they do not consider theban or the opinion of Navajo courts.

When Mr. Shirley passed the ban he stated that, "[A]s long as thereare no answers to cancer, we shouldn't have uranium mining on theNavajo Nation. . . . I believe the powers that be committed genocide on

Navajo land by allowing uranium mining."275 Nevertheless, courts havespecifically held that the Navajo government cannot enforce miningregulations over companies that operate near reservations because they arenot on tribal land and are not Native Americans; it does not matter thatthey may be contaminating tribal land.276 The question of the extent ofcontrol the Navajo Nation can flex over its land and the surrounding areachanges based on the interpretations of the courts and the laws passed byCongress.

VI. INDIAN CHILD WELFARE ACT AND REPARATIONS: AGUIDE FOR A SOLUTION

Additionally, the U.S. government has made it easier forcorporations to harm the Navajo people. Specifically, it does notsufficiently regulate mining organizations because it fears that doing sowould stunt corporate growth. Thus, to promote economic prosperity, ithas allowed organizations to poison tribal land. As a result, thegovernment has indirectly given many Navajos cancer. Legal action needsto be taken to enable the Navajo Nation to protect its people.

The Indian Child Welfare Act implies that Congress may be willingto expand the authority of Navajo courts. According to the Act, Congresshas "assumed the responsibility for the protection and preservation ofIndian Tribes and their resources." 2 77 To compensate for past misdeeds,the tribes were given "exclusive jurisdiction" over Native American childcustody proceedings and Native American parents were given the right tointervene in foster care proceedings to enable them to preserve their own

275 Press Release, supra note 273.276 National Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 855 (1985).277 Indian Child Welfare Act, 25 U.S.C. § 1901(2).

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culture and prevent external influence.2 78 Congress gave Native Americangovernments the power to preserve their culture and granted the expansionof power because "an alarmingly high percentage of Indian families[were] broken up by the removal, often unwarranted, of their childrenfrom them by non-tribal . . . agencies and that an alarmingly highpercentage of such children are placed in non-Indian foster and adoptivehomes and institutions." 2 79

Congress should pass another act, which grants Navajo courts theauthority to control their land for the same reasons it passed the IndianChild Welfare Act. As the history of Navajo authority and uranium mininghas shown, the limitation of the rights of the Navajo has not just been withthe legitimized theft of their children under the pretense of child healthconcerns. Therefore, similar to the special treatment provided in the IndianChild Welfare Act, Congress should enable the Navajo Nation to getspecial authority to manage tribal land with similar authority granted tostates for controlling the cleanup, compensation, and regulation ofuranium mining that will affect Navajo people. Currently, state and federalagencies both pressure and limit Navajo authority over their own andsurrounding land. Legislatively expanding Navajo authority would enablethe Navajo to better control the limited land that they have been allotted inthe past and enable the Navajo government to prevent the continuedexposure that is currently being forced upon them.

VII. SOLUTION: NAVAJO SOVEREIGNTY BASED ON NEW LAWSGIVING THE NAVAJO GREATER AUTHORITY

Only a direct mandate from Congress would sufficiently enableNavajo sovereignty. This kind of congressional authority is exemplified bythe Delaney Mandate, which required food manufacturers to eliminate allcarcinogens from their products. Although the court believed that acomplete elimination was not necessary, it had to follow the mandatebecause Congress clearly expressed its intent.280 In contrast, byinterpreting vague statutes against the Navajo people, courts havesignificantly reduced the rights of tribal governments. Thus, only a directand clearly worded congressional mandate would sufficiently expand theauthority of Navajo courts and tribal government. This new authorityshould allow the Navajo government to regulate and try non-Native

2 81 Id. at § 1911(a)-(c).

2. Id. at § 1901(4).280 Public Citizen v. Young, 831 F.2d 1108, 1113 (D.C. Cir. 1987).

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Americans that damage the Navajo environment, just as any state coulddo.

Corrective justice theories, as applied by Congress in the IndianChild Welfare Act, justify expanding the authority of Navajo courts.Specifically, the new law should allow the Navajo government to regulateand try non-Native Americans that damage tribal land. Even the veryexistence of the tribes was affected by the whims of Congress throughouthistory. As a result of this one-way relationship, courts were able to stripaway Navajo children from their families. This injustice was not correcteduntil Congress passed the Indian Child Welfare Act, which provided theNavajo with greater authority.281' To compensate for historical injusticessuch as this, as well as to allow them to define for themselves their ownpeople groups, the Navajo Nation should be granted greater authority overits land as a sovereign tribe. However, Congress has resisted efforts toincrease Navajo authority because this would reduce the federalgovernment's power.

An optimal solution that would satisfy the interests of both Congressand the Navajo Nation would be to give the Navajo authority overuranium mining. Under the NRC's lax oversight, federal agencies haveproven inept at regulating uranium mining and cleanup. Courts havedeferred to the agencies' poor decisions, perpetuating inefficient andreckless mining. On the other hand, the Navajo government has both theinterest and organizational capacity to regulate uranium mining becausethe Nation has a personal stake in protecting its people from furtherexposure to radioactive material. The interests of the Navajo suggest that,with congressional help, the Navajo government would work to resolvethe unfair treatment of its people through careful management of uraniummining.

A. CURRENT FEDERAL REGULATIONS ARE INSUFFICIENT

Federal regulations are insufficient because they are sent throughoutthe bureaucracy, where various agencies can enforce them differently.Federal agencies enforce regulations unevenly because they often haveopposing political goals. Moreover, in the case of Navajo landcontamination, some of the agencies do not even communicate withNavajo agencies.282 For example, when the EPA was working on the

281 25 U.S.C. § 1911(a)-(c).282 Navajo Nation Environmental Protection Agency, Abandoned Uranium Mines (AUMs)

Navajo Superfund Program White Paper (Apr. 2000), http://frontiemet.net/~nnepansp/

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2012] URANIUM MTNING AND THE NA VAJO NATION

cleanup process and reclaiming CERCLA sites on Navajo territory, theEPA did not consult with the Navajo's environmental protection agency

28regarding the testing and cleanup process.283 Conflicting political goals,poor communication between cooperating agencies, and negligence byagencies that disagree with Navajo policies have left the Navajocommunity burdened with radioactive material for a long period of time,without compensation, and incapable of preventing mining fromcontaminating their homes.

Furthermore, the NRC is an ineffective regulatory agency because itfrequently grants mining companies exceptions in standards of care andcontamination levels. These exceptions are easily supported by the courtsso long as the agency presents acceptable reasons for their decisions. Afterthe first court decision of Morris in March 2010, the Navajo Nationsubmitted a brief in support of the petitioner's case for the appellatecourt.284 The Navajo Nation expressed its concerns with the NRC's abilityto regulate uranium mining when it stated that this case "will determinewhether the NRC may ignore known health risks in licensing decisionsnationwide under its new interpretation[s] of [regulations]."285 The NRC'sinterpretations of mining regulations allow for greater levels of radioactiveexposure to those living near mines, and ignore man-made radioactivewaste in determining levels of background exposure.2 86 Mining companiesmust take background exposure levels into account when determining howmuch waste they are responsible for cleaning up. 287 The higher thebackground exposure levels, the higher the total radioactive waste, and themore the company must clean up. If, in accordance with the NRCinterpretations, man-made radioactive waste is ignored when calculatingbackground exposure levels, this means that man-made amounts ofradioactive waste will not be included in the calculation of totalradioactive waste. Since the total radioactive waste is underreported, theamount of waste that a company must clean up will also decrease becauseless waste is assumed to exist from the start. Thus, mining companies canmore easily receive mining permits, since they must satisfy lower cleanuprequirements. As indicated above, the NRC, the agency that has thegreatest responsibility of controlling uranium mining, has failed to

Aum2.htm; accord Begay v. United States, 591 F. Supp. 991, 1003 (D. Ariz. 1984).283 id.284 Brief Amicus Curiae, supra note 204.285 Id at 1.286 Id. at 3.287 Id at 1.

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prioritize the safety of people in the area.

B. CURRENT LAWS GIVING THE NAVAJO POWER ARE INSUFFICIENT TOGRANT SOVEREIGNTY

There are several sources of legislation that could provide the Navajowith separate authority, but these laws have existed for years and havefailed to grant the Navajo authority over non-Native Americans, includingmining companies, and the land surrounding Navajo territory. Forexample, the CWA contains a number of provisions that allow tribes to betreated as states if the tribes can demonstrate sufficient governingorganization and control.288 The main flaw with this solution is that itrelies on the interpretation of a court system that has traditionally limitedtribal power and authority. The CWA has been in existence since 1972and has still failed to grant the Navajo Nation the authority it needs toprotect its environment. The courts have consistently held that the Navajocannot exert authority over non-Native Americans, which has preventedthe enforcement of any Navajo legislation against mining companies.289Although there are other ways to protect the Navajo from privatecompanies and uranium contamination, increased Navajo sovereignty islikely the only way to ensure Congress's stated goal of preserving thelong-term survival of the Navajo culture.

Although treaties have attempted to give Native Americans controlover their own land, federal courts have consistently interpreted them tolimit Navajo sovereignty and control. If Native Americans are to be givengreater sovereignty, they must be granted this authority in a direct mandatefrom Congress that the courts cannot ignore. In cases such as Neztsosieand Benally, the courts held that tribes did not have the authority tocriminally or civilly try non-Native Americans. 290 At the same time, incases such as Montana and Hydro Resources Inc., the courts redefined andlimited the physical jurisdiction of the land that Native Americans couldcontrol. 291 Through these cases, the courts demonstrated intent to limit thepower and control of tribes, in effect delegating control over these issuesto the U.S. government. This could be more acceptable if the U.S.government and its agencies were proven good stewards of the areas

288 Water Pollution Prevention and Control Act, 33 U.S.C. § 1251 (1987).289 See Hydro Res., Inc. v. U.S. Nuclear Regulation Comm'n, 608 F.3d 1131, 1134 (2010).290 UNC Res., Inc. v. Benally, 518 F. Supp. 1046, 1051 (D. Ariz. 1981); El Paso Natural

Gas Co. v. Neztsosie, 526 U.S. 473, 485 (1999).291 Montana v. United States, 450 U.S. 544, 545 (1981); Hydro Res., Inc., 608 F.3d. at 1149.

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where the Navajo live. However, as discussed earlier, the U.S. governmentpermitted and continues to permit the Navajo population to become sickwith radioactive exposure by allowing new companies to increase theexposure without providing plans for the proper protection of nearbyresidents. By disallowing greater sovereignty to the Navajo Nation, thegovernment is not only failing to protect the Navajo population, but it isalso preventing them from protecting themselves.

C. THE CURRENT EXTENT OF NAVAJO SOVEREIGNTY OVER NAVAJOLAND

To ensure that Navajo laws adhere to the Constitution, the Navajotribe can be treated as any other state, and have the constitutionality of itslaws examined by the Supreme Court, as would be the case with any otherstate law. The U.S. government does not need to grant tribal governmentsthe same rights as a state or a sovereign nation, but it should release themfrom their current limbo in which they are unable to protect themselvesfrom injuries caused by non-Native Americans. The steps towardincreasing Navajo authority are rooted in the acknowledgement of themany past injustices created by the power of the federal government. Ourshared history includes unfair treaties and injustices like the Trail of Tears,the forced removal of children, and the exposure of unknowing residentsto radioactive material. Accordingly, history shows that Congress's statedgoal of the recovery and "protection and preservation" of the Navajo canbe achieved more rapidly, if at all, by granting tribal governments theability to make independent decisions for the benefit of its people.292

It is possible that the Navajo government will be influenced by thesame bureaucracy and private interests that affect the federal government,and thus choose the same path of reduced regulations for miningcompanies. However, in this case, the Navajo people will have the powerto then appeal to the Navajo government, giving individuals greateropportunities to protect themselves from a radioactive environment.

D. POTENTIAL PROBLEMS WITH INCREASED NAVAJO SOVEREIGNTY

Sovereignty is the best and perhaps the only way to provide theNavajo with an effective means of preventing uranium mining. However,some problems may arise. The Navajo may decide to makeenvironmentally unfriendly decisions such as allowing a coal mine to

292 Indian Child Welfare Act, 25 U.S.C. § 1901 (1978).

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develop, which they are currently promoting.29 3 Furthermore, Navajosovereignty may clash with federal or state governments, as the decisionsof the Navajo may harm or interfere with state or federal land interests.For example, the Navajo are currently fighting uranium mining, which isan interest that both federal and state governments pursued withoutconcern for the Navajo's desires294-an interest of national security.

Another potential problem with Congress granting the Navajogovernment sovereignty is that the current Congress cannot bind futureCongresses. History has shown that newly elected Congressional bodiescan dissolve and recreate tribal governments at will. 29 5 This suggests thatCongress would have to pass a constitutional amendment to permanentlyestablish the sovereignty of tribal governments, which is politicallyunlikely to occur and difficult to achieve. Another solution would be toadjust agency policy or change the judicial standard of review for agencydecisions. Agencies could be encouraged to change their political viewsconcerning regulations and Navajo government policies, but this will beneither likely nor permanent, as agency policies also change with differentadministrations. Moreover, the courts are unfamiliar with detailssurrounding the uranium mining industry, which is why we have agenciessuch as the NRC and the EPA to make decisions concerning thesecomplex areas of law. To avoid requiring judges to become experts inenvironmental and mining law, it is wise to permit the courts to rely onagencies for their expertise and knowledge concerning environmentalissues rather than require stricter review of agency decisions.

Navajo sovereignty is nonetheless the only practical solution forenabling the Navajo to protect themselves from environmentalcontamination when the federal and state governments have failed.Despite the potential concerns, granting Navajo sovereignty is the superiorchoice for three main reasons. First, the U.S. government will be giving anation the ability to preserve itself after years of being prevented fromdoing so. Second, Navajo sovereignty may protect an area that is quicklybeing considered a National Sacrifice area to prevent furthercontamination. Finally, Navajo sovereignty (with the continued help offederal agencies) may enable a faster and more secure cleanup of the minewaste and mill tailings that have continued to cause illnesses to the Navajopeople.

293 Ezra Rosser, Ahistorical Indians and Reservation Resources, 40 ENVTL. L. 437, 499(2010).

294 See Hydro Res., Inc., 608 F.3d at 1148.295See id. at 1134.

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VIII. CONCLUSION: THE NAVAJO NEED GREATERSOVEREIGNTY

The history of uranium mining and the treatment of Native Americantribes demonstrate that Native Americans have not been, nor are currentlytreated with the same respect shown to U.S. citizens. The court system hasallowed the federal government to continually grant exceptions to miningcompanies, allowing non-Native Americans to exercise lower levels ofcare on Native American territories. In effect, tribal law has becomeworthless in its attempts to protect the environment, because the maincontaminators of the environment, non-Native Americans, are exemptfrom tribal law. While it may be true that the Navajo government cannotregulate non-Native American actors within its territory without federalaid, the federal government has demonstrated that it alone does not havethe efficiency, regulatory organization, or intent to protect the Navajotribe. Federal and state authorities have failed to protect the people that arestill suffering from exposure to radioactive material and the federal courtsystem continues to interpret existing legislation to limit the ability of theNavajo government to protect its people. Therefore, only new and directcongressional legislation will be sufficient to protect the Navajo people.

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URANIUM MINING AND THE NAVAJO NATION-LEGAL ......relationship between the federal and tribal governments has created a permanent disadvantage for Native Americans, preventing them